By Julie Selesnick – Senior Counsel at Berger Montague
Since December 31 and the first attestation requirement for group health plans is fast approaching, I decided to take a look at how the major insurance carriers providing administrative services to self-funded plans are “helping” the plans with this requirement. I figured I would look at each of the larger carriers and report back to the benefits community on LinkedIn about how they were handling it.
My first post (earlier today) ended up being an unexpected detour into the bizarre world of Cigna. Until today, I had no idea that Cigna was taking a nonsensical (and outlier) position of not attesting on behalf of any of its clients, including its fully insured plan clients (despite being required to do so on its own behalf, as set forth in the guidance issued by the Departments of Labor, Health and Human Services, and the Treasury). See FAQ 57, Q8.
According to Cigna, it has “reviewed the new guidance that allows for third-party attestation regarding gag clauses and accompanying materials detailing attestations submitted on behalf of multiple entities” and “has decided [it] will not be providing attestation support for [its] clients.” Accordingly, Cigna “clients – whether self-funded/ASO or fully insured – will need to provide their own attestations.”
Given that Cigna is required to make this attestation as an issuer of insurance policies to group health plans, it is difficult to understand the logic of excluding fully insured plans from its attestation; Cigna will file this on its own behalf but is refusing to provide safe harbor for its fully insured plan clients. According to FAQ 57, Q10:
With respect to fully-insured group health plans, the group health plan and the issuer are each required to annually submit a Gag Clause Prohibition Compliance Attestation. However, when the issuer of a fully-insured group health plan submits a Gag Clause Prohibition Compliance Attestation on behalf of the plan, the Departments will consider the plan and issuer to have satisfied the attestation submission requirement.
So to recap, Cigna, which has to file this attestation on its own behalf regarding the insurance policies it sold to fully insured plans, is refusing to extend its filing to cover the fully insured clients to whom it sold those insurance policies. Cigna group health plan clients should understand that every other major carrier is filing this attestation on behalf of its fully insured book of business, making this one small compliance safe harbor for fully insured plans in the post-CAA minefield. Except for Cigna fully-insured plans, that is, which now find themselves in the same boat as self-funded plans—responsible for attesting to the federal government that any gag clauses in contracts with network providers that were preventing the plan fiduciaries access to plan data and provider payment terms—have been removed, and the plan is able to get claims data and other information related to cost and quality.
Having attempted to obtain claims data on behalf of fully insured plan clients, I think that health plan fiduciaries whose benefit plans contain fully insured Cigna products should think long and hard about how to handle this issue, review the guidance being offered to self-funded plans and consult plan consultants/brokers/vendors/counsel on how to proceed. It is hard enough for self-funded plans to get their data; Cigna fully insured clients need to consider whether they are really in a position to attest that there are no gag clauses impeding them from accessing plan claims data. If health plan fiduciaries with fully insured Cigna policies haven’t already done so, one immediate move would be to actually request their plan’s data from Cigna and see if any clauses in the insurance policy or in the agreements between Cigna and its providers are relied on by Cigna as justification for withholding the requested data/information.
It might seem confusing as to why this is a big deal, since many of us (me, especially!) have been very vocal in suggesting that self-funded plans do not allow their TPA, PBM, or other plan vendor offering access to a provider or network of providers to file the attestation of compliance on their behalf. But it is different for self-funded plans; even when a third-party files an attestation on a self-funded plan’s behalf, the legal responsibility for filing that attestation remains with the self-funded plan fiduciaries. (FAQ 57, Q9). For fully insured plans, no such requirement exists, as FAQ 57, Q10 illustrates. A health plan that offers participants medical or drug coverage under a fully insured policy is allowed to rely on the issuer’s attestation of compliance. This means the one thing Cigna could have done on behalf of fully insured clients that would have lightened their fiduciary lift and allowed them a small reprieve in the new era of disclosure and compliance, it isn’t doing. Hard to see that being competitively advantageous for Cigna going forward.
Published by Julie Selesnick – Senior Counsel at Berger Montague